413 F.

2d 686

In the Matter of Francesco Paolo LA FRANCA, Petitioner,

v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 665, Docket 32891.

United States Court of Appeals Second Circuit.

Argued June 23, 1969.
Decided July 23, 1969.

Mario M. De Optatis, New York City, for petitioner.

Michael C. Silberberg, Asst. U.S. Atty. (Robert M. Morgenthau, U.S.
Atty. for the Southern District of New York, Daniel Riesel, Sp. Asst. U.S.
Atty., of counsel), for respondent.

Before HAYS and FEINBERG, Cirguit Judges, and JAMESON, District

judge. *
JAMESON, District Judge:

Petitioner seeks to review and reverse a final order of deportation of the Board
of Immigration Appeals denying a motion to reopen petitioner's deportation
proceedings.1 Petitioner contends that (1) his arrest without a warrant was
illegal, rendering subsequent deportation proceedings void; (2) his arrest in
New Jersey and removal to New York for hearing was 'jurisdictionally
improper'; and (3) he should have been afforded the opportunity to establish
eligibility for voluntary departure.

Petitioner is an alien, a native and citizen of Italy. On two prior occasions he

was deported from the United States. He last entered the United States on
February 20, 1967, as a transient without visa and was authorized to remain for
four days. He did not depart within the allotted time and remained at large until
his arrest on June 13, 1968.

Petitioner was placed under arrest by two immigration officials at a bakery

shop which he owned and operated in Jersey City, New Jersey, and was taken
to the New York Office of the Immigration and Naturalization Service. The
following day he was served with a warrant of arrest and an order to show
cause alleging that he was deportable under Section 241(a)(2) of the
Immigration and Naturalization Act, 8 U.S.C. 1251(a)(2).

A hearing was commenced on June 17, 1968, at which petitioner was

represented by Lyle O'Rourke, an experienced attorney,2 and was accompanied
by a relative, who was also an attorney and who acted as interpreter.
Petitioner's counsel contended that since petitioner was arrested in New Jersey,
the case should be heard in Newark and requested a two day extension to 'check
the file, consider the facts,' and talk to his client.

The hearing resumed on June 20, 1968. Petitioner's counsel abandoned his
contention that the hearing should be conducted in New Jersey.3 He conceded
that the petitioner was deportable4 and advised the special inquiry officer that
petitioner was not requesting voluntary departure.5

The special inquiry officer entered an order directing petitioner's deportation to

Italy. Petitioner waived his right to appeal and was released upon posting a
$3,500 appearance bond. He was granted the right to leave the United States
within 30 days and subsequently was granted a 30 day extension.

On August 19, 1968, through new counsel, petitioner moved to reopen the
deportation proceedings and requested an opportunity to apply for the privilege
of voluntary departure. Following a hearing on August 20 before a special
inquiry officer, the motion was denied.6 This decision was affirmed by the
Board of Immigration Appeals on September 3, 1968, and, upon
reconsideration, again affirmed on October 17, 1968. Petition for review was
filed November 1, 1968.7
Legality of Arrest

8 U.S.C. 1357(a)(2) provides, inter alia, that any officer or employee of the
Immigration Service may arrest an alien without a warrant 'if he has reason to
believe that the alien so arrested is in the United States in violation of any * * *
law or regulation and is likely to escape before a warrant can be obtained for
his arrest * * *.' Petitioner was the owner and operator of a bakery in Jersey
City. It would seem that a warrant might have been obtained for his arrest. On
the other hand, petitioner had twice been deported and subsequent to re-entry in

February, 1967, had absconded. From the record we cannot say that the
officers did not have reason to believe that petitioner was likely to escape
before a warrant could be obtained.
10

Certainly there was probable cause to place petitioner under arrest, and his
deportability was conceded at the hearing. The Immigration Service did not
rely upon any statements taken or evidence seized at the time of his arrest.
Under these circumstances, even if the arrest without a warrant were illegal,
this would not invalidate the subsequent deportation proceedings. As the
Supreme Court said in Bilokumsky v. Tod, 1923, 263 U.S. 149, 158, 44 S.Ct.
54, 68 L.Ed. 221: 'Irregularities on the part of the government official prior to,
or in connection with, the arrest would not necessarily invalidate later
proceedings in all respects conformable to law.'8
Place of Hearing

11

There is no clear mandate in either the statute or regulations as to where a

hearing should be held.9 Here the hearing was held in New York City instead
of Newark-- a distance of 15 miles.10 Petitioner resided in Jersey City, where he
was arrested. The place of hearing was easily accessible to him. He was
represented by competent counsel. At the initial hearing he was accompanied
by a relative who was also an attorney. Petitioner was able to post bond. When
the hearing was resumed three days later, he waived any objection to the place
of hearing. This is a matter of venue rather than jurisdiction, and plaintiff could
properly waive any right to have the hearing in the district of his residence or
place of arrest.

12

There is no showing that the immigration officials acted arbitrarily or

capriciously in holding the hearing in New York City or that petitioner was in
any way prejudiced or denied a fair hearing. His counsel expressly abandoned
any objection to the place of hearing. Accordingly, there is no valid basis for
plaintiff's contention that it was improper to hold the hearing in New York
City. See United States ex rel. Vermiglio v. Butterfield, 6 Cir. 1955, 223 F.2d
804; United States ex rel. Mastoras v. McCandless, 3 Cir. 1932, 61 F.2d 366.
Refusal to Reopen Proceedings

13

We find no merit in petitioner's final contention that the hearing should have
been reopened to permit him to attempt to establish eligibility for voluntary
departure. His counsel specifically stated at the June 20 hearing that petitioner
did not request voluntary departure.11

8 C.F.R. 242.22 provides:

14

'A motion to reopen will not be granted unless the special inquiry officer is
satisfied that evidence sought to be offered is material and was not available
and could not have been discovered or presented at the hearing; nor will any
motion to reopen for the purpose of providing the respondent with an
opportunity to make an application under 242.1712 be granted if respondent's
right to make such application was fully explained to him by the special inquiry
officer and he was afforded an opportunity to do so at the hearing, unless
circumstances have arisen thereafter on the basis of which the request is being
made.'

15

The special inquiry officer at the August 20 hearing found that petitioner had
failed to submit any evidence which could not have been presented at the first
hearing13 and that there was 'nothing here to warrant * * * either the stay of
deportation proceedings or the grant of the motion to reopen the cause.' The
Board of Immigration Appeals affirmed this decision and dismissed the appeal.

16

The grant or denial of a motion to reopen a deportation proceeding is

discretionary with the Board of Immigration Appeals. 'The courts cannot
review the exercise of such discretion; they can interfere only when there has
been a clear abuse of discretion or a clear failure to exercise discretion.' United
States ex rel. Adel v. Shaughnessy, 2 Cir. 1950, 183 F.2d 371, 372. There was
no abuse of discretion on the part of the Board in denying petitioner's motion.

17

The petition is denied.

Senior District Judge of the District of Montana, sitting by designation

Pursuant to Section 106(a) of the Immigration and Naturalization Act, 8 U.S.C.

1105a

The special inquiry officer in his oral decision of August 20, 1968, stated that
Mr. O'Rourke 'was experienced in Immigration matters' and appeared in
'numerous causes in the New York Office.'

'Special Inquiry Officer: 'Now, let me ask one question. At the time of the last
hearing, you did raise one preliminary question of jurisdiction. Has that
question been resolved in your mind?'
Mr. O'Rourke: 'Yes.'

Special Inquiry Officer: 'It had to do with this question of his being arrested in
Jersey and given his hearing here.'
Mr. O'Rourke: 'Yes.'
Special Inquiry Officer: 'You're not raising that any more? You abandoned that
question?'
Mr. O'Rourke: 'Yes."
4

'Special Inquiry Officer: 'Now, Mr. O'Rourke, during the period that this case
was adjourned so that you could prepare, have you reached a conclusion now as
to whether you are conceding the allegations of fact and the conclusions of law
to deportability?'
Mr. O'Rourke: 'Yes.'
Special Inquiry Officer: 'Are you so conceding?'
Mr. O'Rourke: 'Yes. This has all been thoroughly explained to my client by the
interpreter here."

'Special Inquiry Officer: 'All right, counsel, on the facts of this case, as you
know them, is this man requesting voluntary departure from the United States?'
Mr. O'Rourke: 'No."

Petitioner's motion to reopen was made upon the same grounds asserted in his
petition for review. Each contention was considered and expressly rejected by
the special inquiry officer

Pursuant to stipulation of counsel, the time for filing the certified record of the
administrative proceedings was extended to March 1, 1969, and the time for
petitioner's brief to May 7, 1969. Respondent's brief was filed June 7, 1969. At
oral argument petitioner's counsel was granted two days within which to serve
and file a reply brief. Counsel's subsequent request for an additional 30 days
and for reargument was denied. The issues are simple, and we see no reason to
delay further the final determination of this case

See also Medeiros v. Brownell, 99 U.S.App.D.C. 396, 240 F.2d 634, 1957;
Vlissidis v. Anadell, 262 F.2d 398, 7 Cir. 1959; Pineiro-Lopez v. Kennedy, 110
U.S.App.D.C. 352, 293 F.2d 540, 1961, cert. denied, 368 U.S. 866, 82 S.Ct.
117, 7 L.Ed.2d 64; Ker v. People of State of Illinois, 119 U.S. 436, 7 S.Ct. 225,
30 L.Ed. 421, 1886; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed.

541, 1952
9

Ordinarily the better procedure would be to hold the hearing in the district of
the alien's residence or place of arrest. Obviously it should not be held in a
district so far removed from his residence or place of arrest as to deprive him of
a fair hearing

10

For administrative purposes the Immigration and Naturalization Service has

been divided into four regions and numerous districts. See 8 C.F.R. 100.4. The
New York district includes parts of New Jersey, and the Newark district the
remainder of New Jersey, with certain exceptions for 'primary inspection
purposes' and port facilities

11

Between June 17 and June 20 counsel had checked the administrative record
and conferred with his client. The record discloses that petitioner had been
denied the privilege of voluntary departure when previously deported

12

242.17(b) provides that, 'The respondent may apply to the special inquiry
officer for voluntary departure in lieu of deportation pursuant to section 244(e)
of the Act * * *.' Pursuant to this section (8 U.S.C. 1254(e)) the Attorney
General may, in his discretion, permit voluntary departure in lieu of deportation
under certain conditions

13

No new evidence was submitted at the August 20 hearing. Counsel for

petitioner informed the special inquiry officer that petitioner had a son who is a
legal resident, close to becoming a citizen, and that petitioner had a business
and had resided in the United States for 15 years without any criminal record.
Counsel for the Government asserted 'without submitting proof, but without
contradiction by counsel' for petitioner, that there were 'substantial reasons
against the granting of the voluntary departure.'